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New state mandate for non-public schools provides clearer language, guidance

After years of conversation, public comments, and often contentious debate, the New York State Board of Regents unanimously voted on September 13, 2022, to update Education Law §3204(2) which addresses the state’s substantial equivalency rules for nonpublic K-12 schools.

The biggest change to the regulations is that there will now be multiple pathways nonpublic schools can take to demonstrate substantial equivalency of instruction. This was not the case when discussion on changes to the regulations – which date to 1865 – began in 2015.

In 2018 the Harley School, an independent public school in Brighton founded in 1917, joined ten other private schools across the state as signatories to legal action against the state when concern started surfacing about changes to the substantial equivalency rules that would have given much of the power of determining it to the public-school districts where the private schools are located and their elected board of education members.

“The rules that came out a few weeks ago look like a compromise to me,” said Larry Frye, The Harley School’s head of school. “They now offer multiple pathways for non-public schools to show substantial equivalency. Clear language about multiple pathways was not in the original proposal and would have functionally put the local private schools in the hands of the public schools, which could have been complicated and politicized in some places.”

These multiple pathways include a method (with details still to be defined), most likely through the State Department of Education, in which private schools can demonstrate substantial equivalency by providing recognition by a recognized accreditor, said Douglas Gerhardt, a partner with Harris Beach, who works out of the Capital Region office as a member of the K-12 Education Institutions and Labor and Employment team.

Other pathways include approval as an 853 school (a state-approved school of special education); schools offering International Baccalaureate or US Government-Approved Instruction; and demonstration of grade-level progress on approved assessments.

There is also a pathway by which a nonpublic school can choose a local school review option that would be overseen by the public school district where the private school is located. Specific details are still forthcoming on this pathway as well.


“We enjoy an exceptionally collaborative and collegial relationship with our local non-public school partners,” said Dr. Kevin McGowan, superintendent of the Brighton Central School District, which is home to ten non-public schools. “We respect their work and value our partnership with them a great deal. We are looking forward to learning more about the state’s new regulations and how we can work together to adhere to guidelines while continuing to support each other’s work.”

The new Regents rules also include an emphasis on the English language when it comes to reviewing programs for substantial equivalency, such as ensuring English is the language of instruction for core subjects and that students who have limited English proficiencies are afforded an instructional program that will allow them to make gains toward English language proficiency.

“In Rochester, we’re home to a lot of really strong nonpublic schools,” said Frye, noting that these new pathways and requirements for showing substantial equivalency should not be a problem for most local private schools who already are meeting them. “For us at the Harley School, whether we’ve been providing substantial equivalency has never been in question.”

Gerhardt, a graduate of the University of Rochester, believes this will be the case with the majority of public schools in the state.

Douglas Gerhardt

“The substantial equivalency standard is not new, it’s something that’s been out there for a really long time,” Gerhardt said. “What the Regents has tried to do here is to make sure there’s a process in place to show that equivalency has been met. I suspect for a lot of schools this will be no big deal because they have demonstrated substantial equivalency for years.”

It appears the new regulations will go into effect during the 2024-2025 school year. By September 1, 2023, public school districts must identify the nonpublic schools within their boundaries.

“The impact on most local public schools may be modest and manageable,” Gerhardt said. “For some, where a large number of students attend nonpublic schools, implementation may be more challenging, even though the regulation is not supposed to impose new burdens on public schools. Local school districts still play a role and may possibly see an uptick in the work related to implementing the regulation.”

The New York State Association of Independent Schools (NYSAIS) has been watching and responding to the substantial equivalency proposals and changes for years. The organization represents 200 independent nursery, elementary, and secondary member schools in the state, including fourteen in western and central New York. Rochester area member schools are the Harley School, Allendale Columbia School, McQuaid Jesuit High School, and the Norman Howard School.

Vince Watchorn

Vince Watchorn, Executive Director of the New York State Association of Independent Schools, provided this statement to the Rochester Business Journal about the New York State Board of Regents’ new regulations on substantial equivalency:

“NYSAIS member schools appreciate that the new regulations respect different instructional models and accept comprehensive, rigorous and well-documented accreditation processes to demonstrate compliance. Each of the 200 NYSAIS member schools regularly subjects its programs and operations to a professional, impartial accreditation process that includes evaluations of schools’ compliance with all NYS education laws, including the substantial equivalence standard. We look to continue working with NYSED and the Commissioner’s Advisory Council of Nonpublic Schools to help develop guidance and implementation processes to ensure all students throughout the state receive the instruction they are entitled to under education laws.”

Caurie Putnam is a Rochester-area freelance writer.